Criminal Law Week

Are challenges to a decision not to prosecute made under the Victim’s Right to Review scheme likely to be successful?

Nov 29, 2017

The following article is written for Police Professional by the editors of Criminal Law Week. Criminal Law Week is used by criminal justice professionals – including police officers, the CPS, judges and lawyers – to stay up to date with changes in criminal law. Published 46 times a year, each issue summarises important cases and legislation, keeping you on top of the latest developments regarding offences, police powers, the rules of procedure and evidence, and more. Incisive commentary is also provided by James Richardson Q.C., the editor of Archbold. Our online service gives you access to all Criminal Law Week issues, from 1997 to today. These are pulled together in a fully-searchable database, complemented by annotated key criminal legislation. For more information about Criminal Law Week, or to sign up for a free trial of our online service, please visit or call 01483 414 599. Are challenges to a decision not to prosecute made under the Victim’s Right to Review scheme likely to be successful? No, said the Divisional Court in R (D) v Director of Public Prosecutions (CLW/17/37/4). The claimant, who had been diagnosed as early as 1993 with post-traumatic stress disorder following other traumatic events in her life, made allegations to the police in October 2013 that, between 1979 and 1984, when aged about five to 11, she had been sexually abused by her then headmaster (Philip White). The abuse allegedly took place in his office under the guise of punishment for misbehaviour, and included at least one allegation of what would now be categorised as oral rape. The headmaster had previously been acquitted of sexual allegations that did not involve oral penetration, relating to a period ten years earlier, made by two other claimants. After the claimant was re-interviewed by the police in February 2015, the matter was referred to the Crown Prosecution Service (CPS) for a charging decision. The CPS took the view that no charges should follow. The claimant sought a review of that decision under the CPS’s Victim’s Right to Review scheme. Again, the CPS decided not to prosecute. The claimant was not happy, and a further review took place. That review was conducted by a specialist prosecutor of the CPS Appeals and Review Unit, who concluded “after a careful and fully independent consideration of all the available evidence” that the original decision not to prosecute was correct. She was not satisfied that there was a realistic prospect of conviction. The evidential test in the Code for Crown Prosecutors had not been met. In particular, there were inconsistencies in the claimant’s account, gaps in her evidence, and there was a lack of supporting evidence from the other potential victims and witnesses that she had named. The claimant commenced proceedings for judicial review challenging the decision, at the conclusion of the Victim’s Right to Review scheme, not to prosecute. The Divisional Court stated that successful challenges to a decision not to prosecute made under the Victims’ Right to Review scheme will be very rare. In assessing such challenges, the court must proceed with caution, bearing in mind that there has already been a review of the original decision not to prosecute and that the decision whether to prosecute is for the prosecutor, not the court. Apart from established public law grounds of challenge, mistake of fact giving rise to unfairness might result in a successful challenge. To succeed on this ground, the claimant would have to show that there had been a mistake as to an existing fact, that the mistake was “established” in the sense that it was uncontentious or objectively verifiable, that he or she was not responsible for the mistake and that the mistake played a material, though not necessarily decisive, part in the decision-maker’s reasoning. In the present case, the specialist prosecutor had been entitled to conclude that the case did not satisfy the evidential test and that those making the earlier decision not to prosecute had not erred in their

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